State v. Young

Decision Date10 August 2017
Docket NumberNo. 104627,104627
PartiesSTATE OF OHIO PLAINTIFF-APPELLEE v. GEORGE YOUNG DEFENDANT-APPELLANT
CourtOhio Court of Appeals

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-13-573242-A

BEFORE: Kilbane, P.J., E.T. Gallagher, J., and Stewart, J.

ATTORNEY FOR APPELLANT

Susan J. Moran

55 Public Square, Suite 1616

Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O'Malley

Cuyahoga County Prosecutor

Denise J. Salerno

Assistant County Prosecutor

The Justice Center - 9th Floor

1200 Ontario Street

Cleveland, Ohio 44113

MARY EILEEN KILBANE, P.J.:

{¶1} Defendant-appellant, George Young ("Young"), appeals from his convictions for rape and kidnapping. For the reasons set forth below, we affirm.

{¶2} This appeal arises from an incident that occurred in 1993. On April 21, 1993, K.A., who was 13 years old at the time, stayed home unbeknownst to her mother, who had left for work that morning. K.A. and her mother lived on Central Avenue in Cleveland, Ohio. At approximately 2:30 p.m., K.A. heard someone using a key to enter the home. She hid in her closet, thinking it was her mother. Mother had given her boyfriend, who K.A. knew by the name of "Randy," a key to the house. Randy was later identified as the defendant, George Randy Young.

{¶3} Young came upstairs with a little boy who began playing video games with K.A. in her bedroom. Thereafter, K.A. decided to change her clothing so she could play outside. Young was in her mother's bedroom, when she went in there to get some socks. While K.A. was standing by the dresser, Young grabbed her from behind and pushed her onto the bed. He punched her in the head and forcefully performed oral sex on her. He then penetrated her vagina with his penis. K.A. was able to grab something from the headboard and hit Young with it, which allowed her to jump up and run out of the house. She ran to a neighbor's house and told her neighbor that she had been raped. Her neighbor called the police, and K.A. was taken to the hospital by ambulance. A sexual assault examination was performed at the hospital.

{¶4} K.A. gave a statement to Cleveland Police on May 1, 1993. In the statement, her assailant is identified as "Randy Spivey," but K.A. had no recollection at trial of making the statement or how the name "Spivey" became associated with Randy. Mother also testified that she was not sure how the name "Spivey" came to be associated with Randy. She did not know Young's last name or where he lived. Mother testified that she was surprised to see investigators in 2013 because she thought the case was closed.

{¶5} Investigators contacted K.A. and her mother because the evidence from the rape kit was tested by the Bureau of Criminal Investigation ("BCI") as part of the Attorney General's incentive to have the BCI test its backlog of untested rape kits. In November 2012, an unknown male DNA profile was developed that matched two different rape kits.

{¶6} In response to the November 2012 notification, Cleveland police reopened their investigation and attempted to locate and identify "Randy Spivey." In March 2013, investigators showed K.A. and her mother a "Randy Spivey" photo lineup. Neither K.A., nor her mother were able to identify anyone from the array. During this same time, Young was incarcerated as a result of an unrelated case in the Cuyahoga County Common Pleas Court.

{¶7} On April 9, 2013, which was prior to the expiration of the 20-year statute of limitations, the state indicted John Doe #1, Unknown Male, and identified John Doe #1only by his DNA profile for the rape and kidnapping of K.A. A warrant for John Doe's arrest was issued the same day.

{¶8} Thereafter, in June 2013, Young's DNA sample was entered into the CODIS system, which revealed a possible match between Young and the DNA profile in K.A.'s rape kit. The BCI informed Cleveland police of the "hit notification" and requested another sample from Young to properly confirm the match. On September 12, 2013, investigators obtained a buccal swab from Young, who was in prison for charges in the unrelated case. On September 17, 2013, the BCI generated a lab report identifying Young as the subject, instead of "Randy Spivey." The BCI matched Young's DNA to that of the unknown male in K.A.'s vaginal swabs at the frequency of occurrence of 1 in 35,750,000,000,000,000,000 unrelated individuals.

{¶9} The state did not move to amend the indictment to change the name from John Doe #1 to George Randy Young until January 31, 2014. A warrant was issued on that same day and Young was arraigned on February 11, 2014. After several motions and pretrials, the matter proceeded to a bench trial on April 25, 2016.

{¶10} Prior to trial, the defense filed several motions and numerous pretrials were conducted. A few weeks before trial, the trial court held a hearing on several of these motions. During the hearing, it was noted that Young's mother's name was written on a police report, but Young admitted that his mother would not have known who "Randy Spivey" was and would not have identified him as such. Young's name did not appear anywhere on the report. After the conclusion of the hearing, the trial court deniedYoung's motion to suppress, motion to dismiss for statute of limitations, motion to dismiss and objection to amended indictment, motion to dismiss for retroactive statute of limitations, and motion to dismiss for lack of speedy trial.

{¶11} Then on April 25, 2016, after numerous pretrials, defense motions (several of which were pro se), and several different attorneys, the matter proceeded to a bench trial. Before trial, Young renewed his motion to dismiss for preindictment delay. He argued that he suffered actual prejudice because he was not able to locate a witness who would be able to testify as to his whereabouts on April 21, 1993, at approximately 2:00 p.m. The trial court denied the motion, stating that

[t]he Court has considered the arguments of counsel, but I do find that under Ohio law, the passage of time itself doesn't create the prejudice and the Court's finding is that no actual prejudice has been demonstrated.
And even if there was, that the delay was justified by the State in bringing the indictment. So I'm going to deny that motion, and we can proceed to trial.

{¶12} After the conclusion of trial, the court found Young guilty of rape and kidnapping. The court sentenced him to a total of 11 years in prison, to be served consecutive to his other case.

{¶13} Young now appeals, raising the following five errors for our review, which shall be discussed out of order for ease of analysis.

Assignment of Error One
The trial court erred when it failed to dismiss [Young's] indictment due to pre-indictment delay.

Assignment of Error Two

The trial court erred in failing to dismiss the indictment as having been time-barred by the six year statute of limitations in violation of his due process rights.

Assignment of Error Three

The trial court erred in failing to dismiss the indictment as having been time-barred by the [20-year] statute of limitations.

Assignment of Error Four

The trial court erred by allowing the state to amend the indictment by adding [Young's] name after the expiration of the statute of limitations had expired, and thereby denying [Young] his right to presentation to the grand jury.

Assignment of Error Five

The trial court erred in denying [Young's] motion to dismiss for lack of speedy trial.
Statute of Limitations

{¶14} In the second and third assignments of error, Young argues the trial court should have dismissed the indictment because the statute of limitations expired prior to the date the charges were brought against him.

{¶15} Young first argues that the six-year statute of limitations for rape applies to his case. He further argues that the retroactive application of the 20-year statute of limitations for rape is an unconstitutional absurdity. We disagree.

{¶16} By an amendment effective March 9, 1999, the Ohio General Assembly extended the statute of limitations for rape from 6 years to 20 years. R.C. 2901.13(A)(3)(a). The amendment applies retroactively to offenses committed prior to the effective date of the amendment, provided that the statute of limitations for suchoffenses had not yet expired by March 9, 1999. State v. Pluhar, 8th Dist. Cuyahoga No. 102012, 2016-Ohio-1465, ¶ 5-6; State v. Copeland, 8th Dist. Cuyahoga No. 89455, 2008-Ohio-234, ¶ 11.

{¶17} In the instant case, the criminal conduct occurred on April 21, 1993. The six-year statute of limitations at the time had not yet expired when the General Assembly's amendment of R.C. 2901.13 became effective in March 1999. As a result, the 20-year statute of limitations applies to Young's case.

{¶18} Young next argues that if the 20-year statute of limitations applies, it also expired because the state did not exercise reasonable diligence when executing the John Doe indictment.

{¶19} R.C. 2901.13(A)(1) provides that a prosecution shall be barred unless it is commenced within the applicable limitations period. The state bears the burden of establishing that prosecution was commenced within the applicable limitations period. State v. Gulley, 8th Dist. Cuyahoga No. 101527, 2015-Ohio-3582, ¶ 14, discretionary appeal not allowed, 144 Ohio St.3d 1505, 2016-Ohio-652, 45 N.E.3d 1050, citing State v. King, 103 Ohio App.3d 210, 212, 658 N.E.2d 1138 (10th Dist.1995).

{¶20} In the instant case, the applicable limitations period is 20 years. If reasonable diligence was used by law enforcement in its attempts to identify the defendant, and all attempts have failed, a John Doe-DNA indictment or warrant can toll the statute of limitations. Gulley at ¶ 15, citing State v. Danley, 138 Ohio Misc.2d 1, 2006-Ohio-3585, 853 N.E.2d 1224 (C.P.); State v. Younge, 2013 UT 71, 321 P.3d 1127;Commonwealth v. Dixon, 458 Mass. 446, 938 N.E.2d 878 (2010); People v. Robinson, 47 Cal.4th 1104, 104...

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